The Constitutional Basis of Judicial Review

Judicial Review is based on two related fundamental constitutional principles:

1. All governmental power must have a lawful source, and
2. All governmental power is subject to legal limits.
Citizens in common law systems are entitled to do whatever the law does not
specifically prohibit, but governments are prohibited from doing any act which
the law does not specifically authorise them to perform. Hence all government
power must have a lawful source. The second principle, that all government
power is limited, follows from the first because the law which provides the
source for a government power will also necessarily define its scope.

The two principles are constitutionally important because they ensure that the
the government is subject to the law and enable individuals to challenge
government actions in the courts. In some cases, if government officials cannot
point to any law which authorises their actions, they may be guilty of a crime or a
tort. That was the case in Entick v Carrington discussed below. The alternative to
government under law is a system in which all government action is lawful.

The principles also increase the government’s dependence on parliament.

Although the common law gave government some powers, often called the
prerogative powers of the Crown, they were limited in scope and unsuitable for
modern government. Modern government requires numerous agencies, all of
which must be given governmental powers under legislation enacted by
parliament or subordinate law making authorities to whom parliament has given
law making powers.

Entick v Carrington (1765) 19 St Tr 1030 is an early example of the operation of

these principles. Entick was a printer accused of being about to print libels
against the government. Government officials, acting on a warrant issued by the
Secretary of State, broke into his house and searched it for the papers. The court
held that the Secretary of State had no power to issue the warrant and that as a
result, the government officers were trespassers. The Court stressed that
government action had to be within its legal powers or could amount to a legal
wrong. It refused to allow necessity, public interest or long usage as a defence
because they were not law or sources of law.